IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 08/10

BETWEEN:

DHANI RAM of Lekutu Bua, Teacher
PLAINTIFF

AND:

COLONIAL FIJI LIFE LIMITED a limited liability
company having its registered office at 3 Central Street, Suva, trading as Colonial Life and Health.
DEFENDANT

Counsels appearing:

Plaintiff: Mr. A Sen of Maqbool & Co
Defendant: Mr. Sharma for R Patel & Co.

RULING

Introduction

This is the Plaintiff's application by Summons for an order for specific discovery under Order 24 rule 7 of the High Court Rules. The action is a claim for breach of contract for certain services to be rendered upon a contingency. The Plaintiff entered into a contract of insurance with the Defendant called a "Value Health Plan" in which the Defendant was to provide health services benefit in the event that the Plaintiff became sick or suffered certain ailments covered by the policy of insurance. The Plaintiff thereafter was diagnosed with a severe three vessel heart disease during the currency of the policy of insurance. The condition required that the Plaintiff receive treatment in Australia and after notifying the Defendant of the need for the treatment and the associated costs the Defendant refused to pay under the policy. 

In its Defence the Defendant states that the Plaintiff failed to disclose in his application for the health plan that he had a pre-existing medical condition. The Defendant based its defence on the report of their doctor's medical examination of the Plaintiff which states that the Plaintiff was suffering from the said condition for a period of two years prior to entering into the contract of insurance. After the initial discovery stages in which the parties exchanged documents the Plaintiff filed this application for specific discovery requesting the Defendant to provide them with the doctor's notes or information which enabled the doctor to arrive at that conclusion. The defendant states that it has provided the Plaintiff with all the documents and information in its custody and possession but that they are not privy to the doctors notes and that they would be calling the doctor themselves to clarify this issue at the trial. They agree with the Defendant though that this information will clear the issue and may end the matter.

Application for Specific Discovery

There are distinct two stages in the discovery and inspection of documents, the first is the discovery and the second the inspection. The discovery is attained by the party required to be discovered by providing in affidavit form a statement indicating whether it has in its possession, custody or power the documents described in the application. That is an affidavit verifying list of documents. The second stage is for the party requiring the documents, to inspect those documents and where necessary copy them. An application for specific discovery must be supported by an affidavit stating the belief of the applicant that the party to be discovered has or has had in their possession, custody or power the documents sought and that the documents are relevant to the cause or matter to be determined. This application is made after the initial discovery and inspection of documents described above.

An application for specific or particular discovery of documents can be made under Order 24 rule 7 of the High Court Rules, the rule states:-

r7.-(1) Subject to rule 8, the Court may at anytime, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it.

(2) An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.

(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the cause or matter.

Under this rule the Court may at any time on the application of any party to the proceedings order any other party to be discovered to provide discovery by filing an affidavit stating whether he/she has in his possession, power or control the documents to be discovered. The affidavit of discovery must also state whether the party to be discovered did have at some time the documents and if he/she does not have it now, when did he/she part possession of it. The application for discovery under this rule must also be supported by an affidavit stating the belief of the deponent that the party to be discovered did have in his/her possession the documents required to be discovered and that most importantly that these documents are relevant to the matters in question in the cause or matter.

Rule 8 refers to matters to be taken into account by the Court in determining whether discovery is necessary at that stage or at all and what orders to make. The rule states:-

r8. On the hearing of an application for an order under rule 3 or 7, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

The application

The Plaintiff's application was by summons under order 24 rule 7 but was not supported by an affidavit as is required under order 24 rule 7(3). For this reason alone the application can be dismissed. In relation to application for discoveries there is only one scenario in which an application is not supported by an affidavit. This is where an application is made for a further and better list of documents. This application is possible under Order 24 where it appears on the face of the list already served or on an admission that in all probability the has or has had other relevant documents beyond those disclosed. This further and better list of documents type of discovery is not often heard within this jurisdiction. This application appears to me to fit into this category the only difficulty is that the documents required, if it does exist, is in the custody and control of a third party. In Berkely Administration –v- McClelland (1990) F.S.R. 381 the Court stated the principle governing specific discovery as follows:-

1. There is no jurisdiction to make an order under RSC, O24, r7, for the production of documents unless; (a) there is sufficient evidence that the documents exist which the other party has not disclosed; (b) the documents relates to matters in issue in the action; (c) there is sufficient evidence that the document is in the possession, custody or power of the other party. 

2. When it is established that those three prerequisites for jurisdiction exists, the Court has jurisdiction whether or not to order disclosure.

3. The order must identify with precision the document or documents or categories of document which are required to be disclosed, for otherwise the person making the list may find himself/herself in serious trouble for swearing to a false affidavit even though doing her/his best to give an honest disclosure.

But what happens if the application is for discovery against a party who is not a party to the proceedings? It is possible to obtain discovery from a party who is not a party to the proceedings. This occur only in situations where the non party to be discovered is a servant or an agent of a corporation and that those documents are in their possession. (see Harrington –v Polytechnic of North London & Others ( 1984) WLR 1293). But as a general rule discovery can only be obtained between parties to the action; (James Nelson & Sons Ltd –v Nelson Line Ltd (1906) 2 K.B.217 at 233, 234;Shaw v- Smith (1886)18 Q.B.D. 193 at 197;Burchand –v- Macfarlane (1891) 2 Q.B. 241 at 247,250,251. In Gulf Investments (Fiji) Pty Limited -v – Reserve Bank of Fiji (2009) HBC 154/09 Justice Inoke stated without specific reference to Order 24 discovery that:

Discovery should not be ordered against a party against whom no reasonable cause of action has been pleaded"

It is clear from the application that the documents the subject of the discovery is with a third party against whom no reasonable cause of action has been pleaded neither is the third party an agent of the Defendant from which discovery could be made.

Conclusion

For the above reasons the application for specific discovery sought is refused. Costs to be costs in the cause. 

Dated the 25th of July 2012.

H A Robinson
Master, High Court, LABASA